Garcia v. W. Stone of Lyons, LLC

Full title: ELOY GARCIA, Plaintiff, v. WESTERN STONE OF LYONS, LLC, and PAUL W…

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Date published: Nov 20, 2014

Civil Action No. 14-cv-01953-REB-BNB (D. Colo. Nov. 20, 2014)

Opinion

Civil Action No. 14-cv-01953-REB-BNB

11-20-2014

ELOY GARCIA, Plaintiff, v. WESTERN STONE OF LYONS, LLC, and PAUL W. FRYSIG, Defendants.

Judge Robert E. Blackburn

ORDER ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Blackburn, J.

The matter before me is the Recommendation of United States Magistrate Judge [#33],¹ filed October 27, 2014. No objections having been filed to the recommendation, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10^th Cir. 2005).² Finding no such error in the recommended disposition, I find and conclude that the magistrate judge's recommendation should be approved and adopted.

1 "[#33]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order.

2 This standard pertains even though plaintiff was proceeding pro se at the time he filed the apposite motion to dismiss. Morales-Fernandez, 418 F.3d at 1122. (Defendant since has secured counsel both for himself and his company, defendant Western Stone of Lyons, LLC. See Notice of Entry of Appearance of Counsel for Defendants [#34], filed November 6, 2014.) Nevertheless, because plaintiff previously was proceeding pro se, I have construed his pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10^thCir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10^th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).

THEREFORE, IT IS ORDERED as follows:

1. That the Recommendation of United States Magistrate Judge [#33], filed October 27, 2014, is APPROVED AND ADOPTED as an order of this court; and

2. That the corresponding Motion To Dismiss [#26], filed October 9, 2014, is DENIED insofar as it is submitted on behalf of defendant, Paul W. Frysig.³

3 The magistrate judge properly struck the motion to the extent it purported to be filed on behalf of the corporate defendant by Mr. Frysig acting pro se. ( See Order [#32], filed October 27, 2014.)
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Dated November 20, 2014, at Denver, Colorado.

BY THE COURT:

/s/_________

Robert E. Blackburn

United States District Judge